In re Douglas H.

The
legal custodians of Mother's two children filed this
petition to terminate her parental rights to the children on
grounds of abandonment and severe child abuse. We affirm the
termination of Mother's parental rights to both children
on at least one ground, but reverse as to some of the grounds
found by the circuit court. We agree with the circuit
court's decision that termination of Mother's
parental rights is in the best interest of the children.

Tenn.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed in Part, Reversed in Part, and Remanded

This
case involves termination of the parental rights of Mollie H.
("Mother") to two of her children, Douglas H., born
in September 2013, and Tailor H., born in August 2015.
Although neither child's birth certificate identifies a
father, all the parties in this action stipulated that Howard
H.[2]
is Douglas's biological father and Derek M.[3] was Tailor's
biological father.

Mother
has a lengthy history of drug abuse that began as early as
age sixteen. Shortly after Mother gave birth to Douglas, she
began using methamphetamine daily and continued to do so
through October 2014. On October 1, 2014, police responded to
Mother's residence where they found Douglas and Mother
with methamphetamine-producing paraphernalia. They arrested
Mother, and she pled guilty to a Class D felony for
unlawfully and feloniously permitting her home to be used for
the manufacture of methamphetamine.

Following
Mother's arrest, the Tennessee Department of
Children's Services ("DCS") removed Douglas
from Mother's custody due to allegations of drug exposure
and environmental neglect resulting from an active
methamphetamine lab located in Mother's residence. Mother
tested positive for methamphetamine, amphetamine, and ecstasy
at the time of the removal. Two days later, on October 3,
2014, DCS filed a petition in the Montgomery County Juvenile
Court asking the court to find Douglas dependent and
neglected and severely abused. DCS placed Douglas in the home
of Jessica P. and Jeffrey P. ("the Petitioners")
pursuant to an Immediate Protection Agreement
("IPA").[4] By executing the IPA, Mother agreed to
complete several services requested by DCS, including alcohol
and drug treatment, resolution of all pending criminal
charges, stable employment, and random drug screens.
Unfortunately, Mother continued to use drugs and struggled to
comply with the requirements of the IPA. For example, between
October 2014 and January 2015, Mother submitted to three drug
screens and tested positive for methamphetamine and/or
amphetamine and refused to submit to at least four drug
screens. Mother also repeatedly cancelled visits with Douglas
during this time.

In late
2014, Mother entered inpatient drug treatment but left
without completing the program. She moved to Texas shortly
after visiting Douglas on January 6, 2015. While Mother
resided in Texas, she attempted no visits with Douglas but
continually reported she would return to Tennessee. The
juvenile court heard DCS's dependency and neglect
petition on April 20, 2015. The court found by clear and
convincing evidence that Douglas was dependent and neglected
and the victim of severe child abuse. The juvenile court
granted the Petitioners temporary legal custody of Douglas.
Mother failed to attend the dependency and neglect hearing
because she was incarcerated in Texas for shoplifting. She
appealed the juvenile court's decision in order to obtain
a de novo hearing.[5]

On June
4, 2015, the Petitioners filed a petition in the Robertson
County Circuit Court for termination of Mother's parental
rights and for adoption in regard to Douglas only.
Thereafter, Mother returned to Tennessee and gave birth to
Tailor in August 2015. DCS removed Tailor from Mother's
custody directly from the hospital because Mother tested
positive for methamphetamine when Tailor was born. Following
the removal, DCS placed Tailor in the home of the Petitioners
with her half-sibling, Douglas, pursuant to a second IPA. The
second IPA required that Mother complete the same services
identified in the first IPA and added that she continue
receiving services to address her mental health
issues.[6]

On
August 11, 2015, DCS filed a petition in the Montgomery
County Juvenile Court to find Tailor dependent and neglected
and severely abused. While DCS's petition was pending in
the juvenile court, the Petitioners filed an amended
termination and adoption petition in the circuit court as to
Douglas on December 16, 2015.[7] Mother continued to use drugs and
struggled to complete the tasks in the IPA during this time.
In fact, by April 20, 2016, Mother still had not completed
any of the tasks in the IPA. She successfully completed one
inpatient drug treatment program but failed to follow through
with treatment recommendations. She submitted to drug screens
and tested positive for illegal substances on at least three
occasions; the last occurred in February 2016 when Mother
tested positive for marijuana. Mother failed to respond to at
least two requests for drug screens.

The
juvenile court heard DCS's petition on May 9, 2016 and
adjudicated Tailor dependent and neglected based upon clear
and convincing evidence, with a stipulated agreement by
Mother to only dependency and neglect. The juvenile court
made no findings on the issue of severe abuse.[8] Nine days later,
on May 18, 2016, the Petitioners filed the first petition in
the circuit court for termination of Mother's parental
rights and for adoption in regard to Tailor. The Petitioners
filed a final amended petition for termination of
Mother's parental rights and adoption as to both children
on June 21, 2016. Upon motion of the Petitioners, the circuit
court consolidated the pending termination of parental rights
and adoption cases for both children on July 5, 2016. On that
same day, the circuit court also entered an order reflecting
the parties' agreement on the terms of Mother's
visitation with the children. The order permitted Mother to
have supervised visitation with the children for one hour
every other Saturday, provided that Mother submitted a
negative drug screen on the Friday prior to the visit.

On
September 22 and 28, 2016, the circuit court conducted a
trial on the consolidated termination of parental rights and
adoption cases. Agent Kyle Darnell, the lead clandestine lab
investigator for the 19th judicial district drug task force,
testified as the agent who responded to the crime scene at
Mother's home on October 1, 2014. He testified as an
expert witness due to his experience from working 200
clandestine labs as a clandestine lab technician since 2007.
When asked to describe the scene at Mother's residence,
Agent Darnell testified that, when he entered Mother's
home, "there was standing water in the apartment"
and "there were electrical cords plugged into
outlets." Agent Darnell further testified that law
enforcement found an active methamphetamine lab and various
drug paraphernalia inside a backpack in the home where Mother
resided with Douglas. He opined that the entire residence had
been exposed to the methamphetamine manufacturing process,
and he concluded that Douglas was undoubtedly exposed to the
manufacture of methamphetamine while residing in the home.

Misha
Daniels, the DCS worker assigned to Tailor's case,
testified that Mother tested positive for drugs on several
occasions, repeatedly refused to submit to drug screens, and
infrequently visited the children. Ms. Daniels further
testified that Mother reported obtaining employment and
stable housing but did not provide DCS with any proof of her
claims. Ms. Daniels stated that Mother remained noncompliant
with the DCS-requested services at the time of trial.

Mother
testified at length during the trial. She acknowledged her
extensive history of drug abuse and that she used drugs
within a month or two of Tailor's birth despite knowing
she was close to delivering a child; however, she testified
that she had not used drugs since October 2015. Mother
further acknowledged her arrest in Tennessee for
manufacturing methamphetamine and her incarceration in Texas
for shoplifting. She conceded that she resided in at least
twelve different residences since Douglas was born, and that
she did not have a residence of her own at the time of trial.
Mother testified that she lived with and paid rent to Darrell
J., who tested positive for drugs. She acknowledged that she
had not been compliant with her mental health treatment
because she had not taken medication as prescribed and
consistently failed to attend her mental health appointments.
Mother testified, however, that she began regularly attending
mental health appointments during the months preceding trial.
She admitted that she failed to support her children
financially following their removal from her custody.

Petitioner
Jessica P. testified that the children are happy,
well-adjusted, and bonded to the Petitioners. She further
testified that the children resided in a stable, loving home
where they knew only the Petitioners as parents. According to
Jessica P., she maintained a calendar of the children's
visits with Mother showing that Mother consistently missed
visits and often arrived late when she did visit.

The
circuit court entered an order on November 16, 2016
terminating Mother's parental rights to the children. The
circuit court found clear and convincing evidence of the
existence of five statutory grounds for termination of
Mother's parental rights to Douglas: (1) abandonment by
willful failure to visit during the four months prior to the
filing of the original petition, (2) abandonment by willful
failure to support during the four months prior to the filing
of the original petition, (3) abandonment by willful failure
to visit during the four months prior to the filing of the
amended petition, (4) abandonment by willful failure to
support during the four months prior to the filing of the
amended petition, and (5) severe child abuse. The circuit
court found clear and convincing evidence of the existence of
three statutory grounds for termination of Mother's
parental rights to Tailor: (1) abandonment by willful failure
to visit during the four months preceding the filing of the
original petition, (2) abandonment by willful failure to
support during the four months preceding the filing of the
original petition, and (3) severe child abuse.

On
appeal, Mother presents three issues for our review. Those
issues can be consolidated into two issues and restated as
follows: (1) whether the trial court erred in finding by
clear and convincing evidence that grounds existed to
terminate Mother's parental rights, and (2) whether the
trial court erred in determining that termination of
Mother's parental rights was in the best interest of the
children.

Standard
of Review

Under
both the federal and state constitutions, a parent has a
fundamental right to the care, custody, and control of his or
her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 249-50
(Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d
170, 174-75 (Tenn. 1996) (citing Nale v. Robertson,
871 S.W.3d 674, 678 (Tenn. 1994)). This right is not
absolute, however. If a compelling state interest exists, the
state may interfere with parental rights.
Nash-Putnam, 921 S.W.2d at 174-75 (citing
Nale, 871 S.W.2d at 678). Our legislature has
enumerated the grounds upon which termination proceedings may
be brought. See Tenn. Code Ann. § 36-1-113(g).
The existence of any one of the enumerated grounds will
support a termination of parental rights. In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

Because
terminating a parent's fundamental parental rights has
severe consequences, termination cases require a court to
apply a higher standard of proof. State Dep't of
Children's Servs. v. A.M.H., 198 S.W.3d 757, 761
(Tenn. Ct. App. 2006). Consequently, a court must determine
by clear and convincing evidence both that grounds for
termination exist and that termination is in the best
interest of the child. Tenn. Code Ann. § 36-1-113(c);
In re Valentine, 79 S.W.3d at 546. "Clear and
convincing evidence 'establishes that the truth of the
facts asserted is highly probable, and eliminates any serious
or substantial doubt about the correctness of the conclusions
drawn from the evidence.'" In re Serenity
B., No. M2013-02685-COA-R3-PT, 2014 WL 2168553, at *2
(Tenn. Ct. App. May 21, 2014) (quoting In re M.J.B.,
140 S.W.3d 643, 653 (Tenn. Ct. App. 2004) (citations
omitted)).

In
light of the heightened standard of proof required in
termination of parental rights cases, we must adapt the
customary standard of review established by Tenn. R. App. P.
13(d). Id. In accordance with Tenn. R. App. P.
13(d), we review the trial court's findings of fact de
novo with a presumption of correctness unless the evidence
preponderates otherwise. Id. Next, we must determine
whether the facts establish the existence of one or more
grounds for termination by clear and convincing evidence.
In re M.J.B., 140 S.W.3d at 654.

Analysis

I.
Grounds for Termination

A.
Abandonment

The
circuit court terminated Mother's rights to both children
pursuant to Tenn. Code Ann. § 36-1-113(g)(1), which
provides that a parent's rights may be terminated if the
parent abandoned his or her child. Tennessee Code Annotated
section 36-1-102 provides several definitions of
"abandonment" as a ground for termination of
parental rights. In this case, the Petitioners specifically
alleged that Mother abandoned both children by her willful
failure to visit and her willful failure to support "as
defined in Tenn. Code Ann. § 36-1-102(1)(A)(i)."
This subsection of the statute defines
"abandonment" as follows:

For a period of four (4) consecutive months immediately
preceding the filing of a proceeding or pleading to terminate
the parental rights of the parent or parents or the guardian
or guardians of the child who is the subject of the petition
for termination of parental rights or adoption, that the
parent or parents or the guardian or guardians either have
willfully failed to visit or have willfully failed to support
or have willfully failed to make reasonable payments toward
the support of the child[.]

Tenn. Code Ann. &sect; 36-1-102(1)(A)(i). A key component of
the foregoing definition of abandonment is the willfulness of
the parent&#39;s conduct. In re Audrey S., 182
S.W.3d 838, 863 (Tenn. Ct. App. 2005). The statutory
definition of "willfully failed to visit" is
"the willful failure, for a period of four (4)
consecutive months, to visit or engage in more than token
visitation." Tenn. Code Ann. § 36-1-102(1)(E).
Tennessee Code Annotated section 36-1-102(1)(C) defines
"token visitation" as "perfunctory visitation
or visitation of such an infrequent ...

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